Providing elder law and estate planning services to the Walnut Creek, CA area. By elder law attorney, Michael J. Young

Many of our older clients are being taken care of by their spouse, or by one or more of their adult children or another family member. The older person of course appreciates the help, and the caregiver feels gratified in their role. The caregiver may also feel extremely guilty if they don not help. The care often takes place in the older person’s home or in the home of a child. Also, spouses and children will at times spend nights in their loved one’s care facility to help with the care.

But, being a caregiver for an older person can be a 24 hour a day, seven days a week job. And, the work can be exhausting. We receive calls all the time from family members or from spouses, who tell us that they can’t do it any more. I remember when my brother and I were trying to take care of our elderly father. My brother and I finally got to the point where we could barely pick our Dad up to help maneuver him to the bathroom. Toileting issues were difficult for everybody. Our Dad also would not cooperate with taking his medications, and there were other problems. My brother and I finally decided that we did not have the requisite skills to properly care for our Dad any longer, but we suffered with the guilt associated with making this decision. I do remember being amazed however, when we hired an experienced in-home care giver for our Dad, how the care giver, because of his training, could easily move our father around.

If you find yourself in the caregiver role, please keep in mind that your own health can suffer as the result of helping your loved one. How many times have we heard of the well spouse passing away from exhaustion caused by her helping her ill spouse? Please give yourself a break. Call other family members and friends to help you. You can utilize adult care services, where you take your loved one to spend several hours during the day. You can also hire a caregiver, and there are many fine agencies in the area who have qualified people who can help you.

Please feel free to contact us if you have questions along these lines, as we may have suggestions for help you can receive within the elder care community

At the Law Offices of Michael J. Young in Walnut Creek, for many years now, we have helped clients and their families with questions such as these. We also continue to help seniors keep what they have earned. We do this through the preparation of asset protection plans, long term care plans, revocable living trusts, powers of attorney and wills, and assistance with applications for Medi-Cal and the VA Aid and attendance Pension Benefit.

This is a common complaint we receive from clients. My own father, while he was in a nursing home during his late 80’s, would constantly complain about losing his dentures, which he called his “teeth”. He would complain that someone kept stealing his teeth. I would say, “Dad, no one wants to steal your teeth!” We asked for help from the nursing home administrator to help monitor where our Dad put his teeth, and this solved the problem.

One of our elderly clients, who is in a nursing home, keeps misplacing her glasses, and cannot remember from one moment to the next where she placed them. Her daughter, who is very exasperated about this, keeps telling her mother to put her glasses in the same place each time she takes them off, but that her mother does not listen. We advised the daughter to talk to the nursing home administrators to help monitor the glasses.

My father also lost his wallet on one occasion, which we were fortunately able to recover. To remedy the situation of losing his wallet again, my brother took our father’s wallet home with him, and gave our father a new wallet with the items in it our father felt he needed. Those items were his red Safeway card and a one hundred dollar bill. This satisfied our father and eliminated the wallet issue.

Glasses and dentures are expensive to replace, but we should keep in mind that elderly people who are in nursing homes may be suffering from memory loss, which could be why they are losing things, and we should be patient with our loved ones.

At the Law Offices of Michael J. Young, for many years now, we have helped clients and their families with questions such as these. We also continue to help seniors keep what they have earned. We do this through the preparation of asset protection plans, revocable living trusts, powers of attorney and wills, and assistance with applications for Medi-Cal and the VA Aid and attendance Pension Benefit.

Congress passed the DRA (Deficit Reduction Act) on February 8, 2006. This act makes qualification for Medi-Cal benefits much more difficult. Congress mandated that the various states adopt the DRA into their rules, and Governor Schwarzenegger signed the DRA into law in California on September 27, 2008. We have been informed that the new DRA rules will become effective in California in the next several months.

One of the most onerous changes for Medi-Cal qualification will involve the penalty period which is created when a gift has been made by the Medi-Cal applicant. There is presently a 30 month look back period for gifts of non-exempt assets. So for example, if a gift was made by the Medi-Cal applicant in the amount of $30,000 within the last 30 months, this amount is divided by the penalty divisor of $7,092, which creates 4.23 months of ineligibility, which is rounded down to 4 months of ineligibility. If this gift was made in November 2012, the applicant would be eligible for Medi-Cal in March 2013, if otherwise qualified. These are the present rules, which we can use for pre-planning for Medi-Cal qualification.

Under the new DRA rules, there is a 60 month look back period, with an added, very negative twist. If the applicant gifted the same $30,000 within the last 60 months, 4.23 months of ineligibility would be created, and that number is not rounded down. If this gift was made in November 2012, she would not be eligible for Medi-Cal for 4.23 months AFTER she is admitted to a nursing home, and is otherwise qualified. For a single person to be otherwise qualified, she could have no more than $2,000 of non-qualified assets. The question will be how to be able to pay for the nursing home for the 4.23 months, and this will be extremely difficult for many people.

If you are considering planning for Medi-Cal and asset protection, you should have your estate planning documents updated to include asset protection and public benefits planning language, and you should consider visiting your elder law attorney as soon as you can for pre-planning.

My father spent some of his final months in a large assisted living facility. He was in his late 80’s, and was at times depressed and grouchy. Since the passing of my mother, he would not socialize easily, and would reject the entreaties of the resident ladies in the facility. He also would not participate in any of the activities that the “social director” would arrange. When I would visit my father, he would be waiting for me in the lobby of the facility, sitting alone, and not talking to anyone. When I would meet with him he would say, “Where the hell have you been?” I noticed that there were many other residents just like him, all sitting alone, and not talking to anyone.

One Saturday I picked up my brother to go with me to visit our father. My brother had a 10 year old Labrador retriever named Gracie. This dog was very friendly, to say the least. She loved everybody, and would make herself at home wherever she was. I asked my brother to bring Gracie with us.

When we arrived at the facility, Gracie pulled us in, immediately went up to an elderly man, not our father, and put her head in his lap! The man was not at all offended, his face lit up, and he started to pet Gracie. My brother apologized and pulled Gracie away. We started to look for my father, and Gracie spotted an elderly lady who was standing up, and leaning against her cane. Gracie walked up to the lady and pushed her snout against the lady’s thigh to say hello. The lady was startled at first, but started to pet Gracie and rub her ears, for which Gracie was grateful.

Finally, we saw my father, sitting alone in a chair, sitting up straight with his cane out in front of him. Gracie went up to my father, and put her head in his lap. My dad’s face lit up, and he began to pet Gracie. This was the first time my father did not say to my brother and I, “Where the hell have you been?” when we went to visit him.

After that meeting, we took Gracie with us to visit our father whenever we could. We noticed also that therapy dogs were brought into the facility on a regular basis for visits, which was always a big hit with the residents. Dogs can be very soothing for older people, and for my father it softened him and brought a smile to his face. Studies have shown that after visits with therapy dogs in care facilities, that the loneliness factor is lessened and that the blood pressure of the residents is lowered. You should consider bringing a dog with you when you visit your older loved ones.

For Medi-Cal qualification for married couples, generally speaking, the ill spouse can only keep $2,000 in liquid assets, plus exempt assets such as the home and IRAs. In addition, the well spouse, also known as the community or at home spouse, can keep up to $113,640 in liquid assets, plus exempt assets. Any assets above these limits, $2,000 for the ill spouse and $113,640 for the well spouse, and excluding exemptions, will be counted for Medi-Cal qualification.

For planning purposes for a married couple, the Medi-Cal regulations allow us to “transmute” or transfer any assets from the ill spouse to the well spouse. There is no penalty for doing this, and no “look back” penalty period is calculated when the transfer is made between spouses. If the well spouse cannot live on the $113,640 plus exempt assets, we can either petition the court or request an administrative hearing to raise that amount, under the impoverished spouse statutes. In addition, we can make gifting transfers to other family members to lower the $113,640.

We can protect the home from a Medi-Cal lien by “transmuting” or transferring title of the home from the ill spouse to the well spouse. This title transfer must be done correctly on the record, and capital gains and other penalties and issues must be taken into account.

These regulations which allow for transfers between spouses for asset protection and Medi-Cal qualification, cannot be implemented however, unless the ill spouse has sufficient mental capacity to make the transfers. If the ill spouse has sufficient mental capacity, she can sign the necessary documents. If she lacks sufficient mental capacity, we must look to her estate planning documents, including the trust and financial durable powers of attorney for the powers.

The estate planning documents must have sufficient expanded fiduciary powers under “gifting” and “revocation” sections in order to make these transfers. Please be advised that most estate planning documents do not have sufficient expanded fiduciary powers, unless an elder law attorney has prepared the documents or has amended the documents. If no such powers exist in the documents, we can go to court on a petition to request that the documents be amended to include these powers.

The best advice is to update your estate planning documents with the recognized asset protection and government benefits planning language while mental capacities are intact.

We have qualified many of our clients for the VA Aid & Attendance Pension benefit, (A&A) which is available for wartime veterans or their surviving spouses, as part of their long term care plans. This program can pay the veteran over $19,000 per year, or the surviving spouse of the veteran over $12,000 per year. This benefit is very helpful for the payment of in-home care, assisted living and board and care costs.

For many of our clients, planning for qualification for this benefit is required. Any planning for A&A must be coordinated with planning for Medi-Cal, which helps pay for the cost of skilled nursing facilities. As part of the planning, the Medi-Cal regulations allow for the gifting of assets in order to obtain eligibility. These regulations also provide for periods of ineligibility for Medi-Cal, if the gifting is not done properly.

The VA, Aid and Attendance program presently has no penalties for gifting. As a result, the veteran can theoretically give all of his money away today, and be eligible for the VA benefit tomorrow. However, if the gifting is not done properly, and pursuant to the Medi-Cal regulations, the veteran may not be eligible for Medi-Cal for many months. The cost of nursing homes can be $10,000 per month, and we never know when we may end up in a nursing home.

The Aid and Attendance Pension benefit has become very popular as of late, and the United States Congress has expressed concern lately about complaints concerning the length of time it now takes for the A&A applications to be processed. Congress has also been concerned about complaints concerning abusive practices by some within the financial investment community, who advocate asset transfers from veterans or their surviving spouses, and who then sell annuities in order get people qualified for the benefit. In many instances the applicants do not qualify for A&A, and their chances of obtaining Medi-Cal may have been jeopardized for many months. In addition, qualification for A&A does not require the purchase of an annuity.

As a result, Congress is considering imposing a “look back penalty period” for gifting of assets in order to obtain qualification for A&A. The result will be a penalty period for eligibility for A&A. A three year look back penalty period has been suggested by a U.S. Senator. Any such new legislation would probably not take effect for another year. As a result, long term care planning should begin as soon as practicable. After all, to quote my mother, “None of us are getting any younger.”

Does your Financial Durable Power of Attorney (financial DPA) contain asset protection and government benefits qualification language? It probably does not, unless it was prepared by an elder law attorney. If you lose mental capacity, your spouse or children may be prevented from gifting your assets to themselves, in order to help you qualify for Medi-Cal or for the VA Aid & Attendance Pension benefit.

If your financial DPA contains any gifting language at all, it is probably limited to the annual gift tax exclusion amount, which is $13,000 per person this year. This language is usually of little help for Medi-Cal qualification. In addition, the language will probably not allow for gifting to the ”attorney in fact”, who is the person acting for you. Specialized language is required under the law in order to allow for any gifting to the person acting as the “attorney in fact.” This specialized language usually does not appear in a “regular” financial durable power of attorney.

For instance, the home can easily be established as an exempt asset for Medi-Cal qualification. If the home is in the name of the Medi-Cal applicant who has lost mental capacity, and we want to transfer the home to a child and reserve a life estate to the applicant in order to avoid a Medi-Cal lien, most financial durable powers of attorney will not allow for this. Most financial durable powers of attorney will allow a transfer only upon receipt of consideration from a sale for fair market value of the real property.

To give another example, the Medi-Cal applicant, under the regulations, is allowed to own a life insurance policy, with a pay on death figure in any amount. However, in order to qualify for Medi-Cal, the applicant’s life insurance policy cannot have more than $1500 cash value. If there is a $5,000 cash value, for instance, the Medi-Cal applicant cannot qualify. The remedy is to liquidate the cash from the policy and then gift it out. What do you do however if the Medi-Cal applicant has lost capacity? We need to then look at the powers in the financial durable power of attorney. However, although most financial DPAs may allow for a liquidation of the cash value, they will not allow you to gift the cash out. The Medi-Cal applicant can only retain $2,000 in non qualified accounts, and if the cash from the policy cannot be gifted, it would have to be spent before qualification for Medi-Cal can be obtained.

The financial DPA in an elder law context, is also coordinated with the revocable living trust of the applicant. There should be specialized asset protection language in the trust, which refers to the financial DPA. This specialized language will allow the attorney in fact to “stand in the shoes” of the maker of the trust, for all purposes, including for Medi-Cal qualification. This technique is allowed by law, and provides the greatest amount of flexibility for the family who is helping the older person who has lost capacity, when we are applying for Medi-Cal.

Remember that if existing estate planning documents are not updated before the older person loses capacity, we may have to resort to a court proceeding to modify the language in the documents. This process is expensive and is not always guaranteed. The best approach is to pre-planning, and to have your estate planning documents updated as early as possible by a qualified elder law attorney, who practices full time in this area of the law.

I practice Elder Law and represent the older client and their families. When clients come to see me, their concerns are not so much about what happens when they die, but more about ’What happens if they don’t die.’

Of course, they want to make sure that their assets pass to their family with a minimum of expenses and taxes. But the bigger and more complicated question is, “What happens if I don’t die?” As we know, Americans are living longer all the time. The infirmities of old age may require that we have in home care assistance, or go to an assisted living facility, board and care home or eventually a to a nursing home. We are of course concerned about how we pay for these costs. A regular estate plan does not address these needs. An elder law attorney can prepare a long term care plan for you, and address these needs. He will also address the concern of passing assets to their family.

To put it another way, a regular estate plan insures that if you die, your assets will be passed on to your family the way you want. The operative word is “if”. A regular estate plan will not help preserve assets so that hopefully there will be something left when you die to pass on to your family. As we know, the assets of the older client could be depleted by a nursing home stay or lengthy illness, which could leave their spouse or heirs with nothing.

If you have sufficient assets to pay for long-term care or nursing home costs without running out of funds, then a regualr estate planning attorney may be all you need. However, if you cannot afford the cost of a lenghty nursing home stay, of around $90,000 per year or $180,000 per year for a couple, or more, then an elder law attorney would be able to help you.

For a real life example, Mary and Jim have about $300,000 in assets and a home worth around $500,000. Jim needs assistance and uses a wheelchair. Mary has been providing for his care, but recently has shown signs of forgetfulness and confusion. She has been diagnosed by her doctor as having early signs of dementia.

An estate plan is of course important to Jim and Mary, but this won’t help them deal with the problems they are presently dealing with. They want to tackle the issue of how they will be able to afford the cost of nursing home care should either one or both of them need it. They want to establish how they will be taken care of should Mary’s dementia become more advanced. They want to find out if if they can stay in their home with assistance.

This couple needs a life plan, specific to them, to meet their needs for the future. Jim and Mary need to seek the advice of an elder law attorney.